NATIONAL SECURITY: When a search warrant becomes a death warrant

by John Miller

News Weekly, April 1, 2006

A former senior intelligence officer John Miller argues that Attorney-General Philip Ruddock must take urgent action to protect the identities of people who have confidentially provided information on terrorist suspects to the Australian Federal Police.

1. Protecting identities of people who have confidentially provided information to the authorities.

It may well be the case that, as Mr Ruddock says, the Crimes Act 1914 "stipulates that search warrants must include certain information, including the offence to which the warrant relates, the description of the premises, and the kinds of evidential material to be searched for".

My experience has been with warrants for activities conducted by both ASIO and the Australian Federal Police. For example, if a dwelling or office is to be the subject of electronic monitoring, i.e., the use of bugging devices or fibre-optic cameras, there is never a requirement to sight a warrant. That would totally defeat the purpose of the exercise - warrants for electronic monitoring are usually accompanied by warrants to enter the premises in a clandestine fashion.

This is how it should be, or rather should have been, at the time of the police raids on terrorist suspects last November. Therefore, it would appear that the Commonwealth Director of Public Prosecutions (CDPP) Search Warrants Manual requires an urgent overhaul.

It is not enough for Mr Ruddock to say that the AFP and CDPP will, in future, "endeavour" to draft warrants that do not contain information that could identify an informant. It should be mandatory! An application for a warrant should be treated as a top-secret document with restricted circulation, and the person who grants the application should be required to sign a secrecy declaration.

As I stated originally, allowing a person suspected of aiding or abetting terrorist activities to see a warrant and be able to identify the source of information is tantamount to issuing a different type of warrant altogether - a death warrant for the informant.

2. Media coverage of raids on terrorist suspects.

Secondly, I do not think that the practice of allowing the media to be involved with raids serves anyone's interests. Media coverage of the events of last November reeks of a tip-off at a senior level.

Some anecdotal evidence points to the state police of Victoria and New South Wales. The manner in which the national counter-terrorist effort is currently managed means that state police forces are the first line of defence. With that responsibility comes a high degree of specialised training and, when damage assessments occur, it is incumbent on those authorities to ensure that, like Caesar's wife, they are above reproach.

There are undoubtedly some upwardly-mobile, career-minded officers in the intelligence and police communities who think that letting their activities appear on TV is in the public interest or provides valuable publicity for their effectiveness and efficiency. They need to think again, for terrorism is a totally different problem from, say, drug-running or high-speed car chases.

If an inquiry into last November's raids points to deliberate tip-offs to the media, disciplinary action is warranted. If those responsible do not realise that these leaks put lives at risk and will likely deter potential informants from coming forward, then there is a serious fault with the system.

The reported 72,000 calls on the National Security Hotline are a great achievement and should not be jeopardised by the identification of informants and attendant publicity. The fact that it looks good on TV is no justification for tipping off the media.

3. Power to monitor private telephone calls.

The Australian (March 18, 2006) carried an article entitled "Callers to terrorism hotlines face taps", which outlines the Telecommunications (Interception) Amendment Bill 2006, currently before the Federal Parliament.

The Australian Federal Police revealed that the amendments, if passed - as appears likely with a Government majority in the Senate - would give them the power to monitor the telephone services of citizens who had volunteered information on the terrorism hotline.

AFP Deputy Commissioner John Lawler told a Senate Legal and Constitutional Committee inquiry into the effects of the amendments that an example of their usefulness "might be the recent terrorism case around the chemical stores – where you have information that somebody is going to ring in and place an order but do not know who it is or what phone they have. ... The very best information could be obtained by such a capacity." No doubt about that from an AFP point of view!

However, while the war on terror is very much an important task, as a former intelligence officer, who could hardly be described as a shrinking violet in pursuit of all avenues of inquiries on prospective terrorism, I find myself concerned about the possible infringement of the civil liberties of people who have willingly volunteered to assist the authorities.

It means that all telephone calls on a given line will be monitored, and that includes all nominally private calls that range from business to highly personal matters. (It could possibly mean the revelation of intimate information that should not be recorded or even mentioned among those engaged in monitoring).

The potential for obtaining material that could be used by an unscrupulous rogue police officer for blackmail is omnipresent, and let us not delude ourselves that law-enforcement agencies are free of corruption.

The strictest regulation must be placed on recording and retaining details of the "take" of telephonic interception, and that also means e-mails. Only, repeat only, those calls relating to the original case for interception should be kept; the remainder should be destroyed.

The argument that everything must be retained may be seen as compelling under some circumstances, but the proposed amendments are without doubt a further disincentive for people to call the National Security Hotline.

A cost-benefit analysis of this exercise would tend to indicate that, while interception covers all bases on one hand, it has a strong deterrent effect on those who might volunteer information on the other.

4. Andrew Wilkie's breach of national security.

Lastly, I understand that Mr Ruddock, as Attorney-General, would not revisit a case involving a breach of national security that occurred prior to his assuming responsibility for the portfolio.

However, in the case of Andrew Wilkie (formerly of the Office of National Assessments), Wilkie was privy to and understood the rules concerning the handling of SIGINT (signals intelligence) material. If using them in public, and then attempting to have them included in his book, do not constitute an offence, there must surely be grounds for overhauling our present system.

Because of its nature and origin, SIGINT is usually classified "top secret", and the Australian public does not have a right to know about the content of material passed to the relevant Australian government authorities.

The last thing anyone would want in the war against terror is for this particular tap to be turned off because of the peculiar Australian predilection for revering so-called whistleblowers.

In many countries, Mr Wilkie's actions would rightly be declared treasonable, with appropriate legal action taken against him.

Is there a statute of limitations on cases that prevents an Attorney-General from pursuing errors of judgment made by his predecessor?